TMI Blog2011 (10) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... 975) (101 ITR 46) (Guj) 5. CWT Vs. Maharaja Bahadur Singh Kasliwal Anr. (1996) (220 ITR 319) (MP) 6. CIT Vs. Sothia Mining Mfg. Corpn. (1990) 186 ITR 182 (Cal.) 7. P. Balasubramaniam Vs. ACIT in IT(SS)A Nos.183 184/Mds. 2003). 3. It has been held in CIT Vs. K.S.P. Shanmugavel Nadar Ors. (1985) (153 ITR 596) (Mad.) that where assessee has been prosecuting other remedies before filing an appeal, the time taken by those proceedings should be taken into account while determining the question whether the assessee had sufficient cause for not presenting the appeal in time. 4. Following the ratio of the above decision we condone the delay of 286 days and proceed to hear the appeal. 5. The Assessee is in appeal challenging the validity of the rectification order u/s 154 dated 27.11.2000 passed by the Joint Commissioner of Income Tax (Assts), Special Range, Guntur. As a result of rectification, the Assessing Officer has disallowed wrong claim of depreciation on assets which have been used for less than 182 days. The rectification order has resulted an additional tax of demand of ₹ 51,19,412/-. 6. The facts of the case are that the assessee is running a Spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The CIT(A) dismissed the appeal by the Assessee holding as under: I have considered the point in detail and also the arguments of the representative. The Assessing Officer was legally corrected in rectifying the mistake and correcting the computation of depreciation. That it is an apparent mistake evident from record is not denied by the appellant. The Assessing Officer having denied deduction of revenue expenditure of the cost of the entire plant and machinery, has considered ₹ 1,17,05,275/- as capital expenditure. While computing the depreciation, he has missed a fact, that machinery was put to use only after 03.10.1994 and hence eligible depreciation is 12.5% Therefore he has allowed depreciation wrongly at 25% on the entire cost of the machinery. According to Supreme Court decision in 82 ITR 50, the mistake apparent from the record may be an obvious and apparent mistake and not something which can be established by a process of reasoning on points on which there may be two opinions decision on a debatable point of law is not a mistake apparent from the record. In the light of the above, it constitutes the apparent mistake, and the withdrawal of depreciation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers which has not been touched by that authority. Such untouched matters may be subjected t rectification vide reference in 164 ITR 197 and 140 ITR 677. The Commissioner of Income Tax has not applied his mind and actively considered the computation of depreciation. Hence the Assessing Officer is well within his powers to rectify the assessment and withdraw the excess depreciation granted. The appellant has also submitted copy of the rectification petition has been made before the Commissioner of Income Tax, Tirupati, The pendency of this petition cannot in any way affect this appeal. Since section 91 of Kar Vivad Samadhan Scheme does not exclude such rectification or disposal of appeal. Under the circumstances, I do not find any infirmity in the order of the Assessing Officer, Hence, appeal is dismissed. 12. Aggrieved the Assessee is on appeal before us. 13. It was submitted by the Assessee s counsel Shri Bhanusekar that the once the assessment for the entire year has been settled by following the provisions of the Kar Vivad Samadhan Scheme and the designated authority after application of mind has made an order under section 90, which has been complied with by making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The tax arrears would accordingly stand modified and in such cases the modified tax arrears will constitute the tax arrears for the purposes of declaration under this scheme . As per the second proviso to section 90(1) of the Finance Act, 1998, the designated authority may amend the certificate for reasons to be recorded in writing. 16. The learned counsel contended that the Commissioner of Income Tax (Appeals) has failed to appreciate the decision of the Gujarat High Court, upheld by the Supreme Court (258 ITR 437) in Shaily Engineering Plastics Ltd vs Designated Authority (1999) 239 ITR 90 (Guj) wherein the Court concluded that even in case, the existing tax liability which included both admitted as well as disputed liability is reduced to admitted liability as a result of a subsequent order, it still does not take the case outside the purview of Scheme, though it may affect the question of determining the quantum of amount payable under the Scheme, which will have to be determined by the designated authority and thereby set aside the order of the Assessing Officer under section 154 as having become infructuous and directed the designated authority to consider the declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and has upheld the order of rectification by the Assessing Officer. Thereupon the assessee had filed a petition before the Commissioner requesting for the rectification of the order under KVSS to include disallowance proposed by the assessing officer under Section 154. The same has not been acted upon. 19. In this appeal the Assessee has submitted that the assessing authority has no right to rectify the order revising the tax arrears, which has been originally accepted under KVSS. The Assessee has filed declaration under Section 88 of KVSS. The designated Authority passed an order quantifying the sum pa every order passed u/s 90(1) determining the sum payable under the scheme shall be conclusive as to the matters stated therein and no mater covered by such order shall be reopened in any other proceedings under the Direct Tax Act or under any other law in force. Further under first proviso to clause 90(1), it has been provided that if any the material particulars furnished in the declaration is found to be false, it shall be presumed declaration was never made and the second proviso to sec 90(1) permits that designated authority may amend the certificate for the reasons to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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